Judgment :-

Dipak Misra, J.

This Appeal by Special Leave is directed against the judgment of conviction and order of sentence dated July 31, 2008 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 543-SB of 1996 whereby the learned Single Judge has given the stamp of approval to the conviction and sentence recoded by the learned Additional Sessions Judge, Kurukshetra in S.T. No. 15 of 1993 on 24.7.1996 whereby he, after finding the accused-appellant guilty of the offence punishable under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for brevity ‘the Act’), had sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- and, in default of payment of fine, to suffer further rigorous imprisonment for a period of one year.

2. The factual matrix as has been undraped by the prosecution is that on 23.12.1992 about 10.00 A.M., Kaptan Singh, the Sub-Inspector, along with other police officials, was present near Deer Park, Pipli, in connection with excise checking in a Tata Mobile Vehicle. Receiving a secret and reliable information to the effect that the accused-appellant would come to the ‘dhaba’ situated on the G.T. Road, on his scooter, carrying opium and if a picket was held, he could be apprehended, he sent a V.T. message to the Additional Superintendent of Police to reach the place. Thereafter, Kaptan Singh, along with other police officials, went to the T-point of Jahajo Wali Road on G.T. Road and held a picket. In the meanwhile, the accused was seen coming on his scooter, bearing No. DLS-1756 and at that time Mohmad Akil, Additional S.P., Kurukshetra, along with his staff arrived at the spot. He was apprised of the situation and, thereafter, on his instructions search of the tool box of the scooter was conducted and a polythene bag containing of 5½ Kg. of opium was recovered. Ten grams opium was separated as sample and the remaining opium was put into a separate container. The sample and the container, containing the remaining opium, were converted into parcels duly sealed with seals and taken into possession vide a separate recovery memo. The accused was arrested and a ruqa was sent to the police station on the basis whereof a formal FIR was registered. After completing the investigation the charge-sheet was submitted before the competent court.

3. Before the trial court the accused abjured his guilt, pleaded false implication and claimed to be tried.

4. The prosecution to substantiate its case examined Banarsi Das, Head Constable, PW-1, Dharam Singh, ASI, PW-2, Mam Chand, Constable, PW-3, Ram Udit, Head Constable, PW-4, Akil Mohamad, S.P., PW-5 and Kaptan Singh and the Investigating Officer, PW-6. The accused in his statement under Section 313 of the Code of Criminal Procedure stated that he was employed in the ‘dhaba’, namely, Man Driver Dhaba at village Teora and he had been apprehended from the ‘dhaba’ and falsely implicated. In support of his defence, he examined Karan Singh, DW-1, who had recorded the statements of PW-1 and PW-3.

5. Before the learned trial Judge, it was contended that the prosecution had miserably failed to bring home the charge by resting its case solely on the version of official witnesses and not examining any independent witness despite the fact that the accused was apprehended and alleged contraband articles were seized while he was in a ‘dhaba’; that there had been non-compliance of Section 50 of the Act inasmuch as he was not properly informed about his right to be searched in presence of a gazetted officer or a Magistrate; that the recovery from the tool box of the scooter would not amount to conscious possession of the contraband article by the accused; and that the non-production of the scooter in court falsified the version of the prosecution. The learned trial Judge dealt with all the aspects and came to hold that the search and seizure was valid; that the accused had not been falsely impl